Water bill gives tenants rights on federal lands
Afton – Water rights are an ongoing issue that Wyoming’s producers tackle each year. The issue of water rights on state or public lands is of particular concern to producers who lease allotments from the Forest Service or the BLM.
“The real issue is who owns the rights on federal lands,” said Wyoming State Engineer Pat Tyrell at the Joint Agriculture, State and Public Lands and Water Resources Committee meeting in Afton on Sept. 27. “The underlying issue is permittee concern with what the federal government will do with water rights on their leased allotments.”
“We don’t see many incidents, or any that I can recall, of this happening,” added Tyrell, emphasizing that the bill was to address concerns prior to any conflict.
Tyrell said, “The approach taken with this bill is if there is a water right for stock rights on federal land, the agencies cannot seek a change, move or abandon the right without seeking the consent of the tenant.”
A bill drafted by the Legislative Services Office lays out changes to Wyoming Statutes (W.S.) 41-3-104, 41-4-401 and 41-4-506.
Additional subsections to W.S. 41-3-104 provide that the petitioner must seek consent for the proposed change from any affected tenant of the land. Permissions must be attached to the petition, and, prior to issuing the change of use, the State Engineer will consider economic loss to the tenant and if other sources of water are available for both the tenant and the petitioner.
Additionally, according to changes in 41-3-104, the tenant may request a hearing if consent is not obtained or if the decision to change use occurs.
Other changes to the statutes in 41-3-401 and 41-3-114 address similar issues, requiring consent for the abandonment of a water right and petition to change point of diversion or means of conveyance, respectively.
Changes to 41-4-506 require notification to landowners if cancellation of a permit is sought.
“It becomes a water injury question,” said Tyrell. “It will provide that the permittee or lessee to be sought out for consent.”
Senator Larry Hicks, a Joint Ag Committee member, expressed concern, asking what would happen in the event that consent wasn’t obtained.
“If the permittee objects, the federal government can still do whatever they want under our water law. Is that correct?” asked Hicks. “All this does is set up a process.”
“There has to be a water reason for the change of use,” explained Tyrell. “There will be a hearing. If they are going to move the only water available, producers will have the opportunity to be heard.”
Tyrell further explained that landowners have the right to do what they want with their water, and the federal government also has that right, but the new bill does require the petitioner to seek consent before making changes.
“I can’t tell you ahead of time what the outcome of all situations may be,” said Tyrell, who also said that a hearing would address concerns of both parties. The Board of Control relies heavily on evidence in the hearing before making decisions.
“This is very timely, given what we just saw with the Big Horn Basin Resource Management Plan,” said Hicks. “I commend the people trying to address this issue, but what it comes down to is, do you trust the federal government? I’m just not convinced that establishing a process that still allows the federal government to change the use is a good first step.”
Wyoming Stock Growers Association Executive Vice President Jim Magagna commented on the bill, saying, “This bill gives the permittee or lessee a bargaining tool to help with negotiations.”
“The criteria puts an obligation on the Board of Control to consider those factors and the availability of other sources of water in rendering their decision,” added Magagna. “I would urge the committee to go forward with this to provide a backdrop for negotiations taking place.”
Brett Moline of Wyoming Farm Bureau mentioned that, with the organization’s current policy, Farm Bureau would not be able to support the bill.
Tyrell answered questions by Representative Dan Zwonitzer on the prevalence of changing use in water rights.
Tyrell said, “We don’t see this sort of misadventures coming in. That is not to say that these issues may not happen, but right now we aren’t seeing this problem.”
Hicks added, “What we do see is sometimes the federal land management agencies filing for only wildlife use. In that particular case, they completely fence off the livestock, but I would concur that we haven’t seen change of use.”
Ultimately the bill was adopted by the Joint Ag Committee and will be in the Senate file in the upcoming legislative session.
An additional bill concerning water rights addressed change of use for irrigation districts. The bill provided changes to W.S. 41-3-204(a) and 41-4-514(d) such that petitions to amend permits, as long as there is not injury to the water rights of other appropriators, will be considered.
The bill also provides that the acreage must not exceed the actual irrigated acreage under the original water right and amendments may be made.
The amendments to 41-4-514(d) clarify, “The water rights of other appropriators shall not be injuriously affected by the granting of an amended certificate of appropriation.”
After additional amendments to the bill by the committee to include conservancy as well as organized irrigation districts and to clarify Wyoming water, the bill passed and will be presented in the House of Representatives during the 2012 legislative session.
Minutes from all legislative meetings are available at legisweb.state.wy.us. Saige Albert is assistant editor of the Wyoming Livestock Roundup and can be reached at firstname.lastname@example.org.